Wednesday, March 02, 2016

The Whole Truth About Abortion

by Sherry F. Colb

As has been widely reported and discussed, the Supreme Court hears argument today in a case challenging a restrictive abortion law from Texas. This post and my Verdict column for this week discuss a California law involving a different kind of abortion-related law: it requires licensed facilities to notify their patients that California has public programs that provide free or low-cost reproductive services, including abortion, coupled with a phone number for women to access such services.

In the column, I take up the question of how a pro-choice versus a pro-life advocate might perceive this law and consider and reflect on both perspectives. One of the arguably salient issues in this context is whether pro-life pregnancy clinics are affirmatively lying to patients or whether they are simply omitting some information that patients might be interested in knowing (or entitled to know). To the extent that clinics are telling women false information about abortion, that would plainly be inappropriate (hopefully by the lights of any honest person, regardless of her position on abortion). But the California law seems to address what is more of an omission than an act by pro-life crisis pregnancy centers: their failure to share information about the availability of abortion (as well as contraception) and its subsidization by the government of California.

In testifying, witnesses swear (or affirm) to tell the truth, the "whole truth," and nothing but the truth. A commitment to the whole truth means that a person has violated the oath if she or he tells only a partial version of what happened, leaving out important details that could make a difference to the disposition of the case. Similarly, if a pregnant woman goes to a crisis pregnancy center, she may well expect to learn about the various alternatives she has in handling her pregnancy. This would include information about prenatal care, taking her pregnancy to term, surrender of babies for adoption and choosing adoptive parents, future use of contraception, and terminating her pregnancy. Learning about only some of these alternatives but not the last one (or the last two) would reflect the impact of missing the "whole truth" about reproductive options. If one were testifying under oath about paths one might take upon learning that one was pregnant, one would accordingly be violating the oath to tell the "whole truth"by providing only the partial information provided by pro-life crisis pregnancy centers.

On the other hand, is a crisis pregnancy center like a witness in court who promises to tell the "whole truth," or is such a center a different sort of thing? My view (as a pro-choice person) is that the whole array of legally recognized options for pregnant women is part of what is implicitly promised when a center bills itself as a "crisis pregnancy center" (or even just a "pregnancy center" or "reproductive health center"). To omit abortion, on this view, is to fail to deliver what one has promised at the door, a failure very similar to the witness's omission of important facts in telling a partial truth rather than the whole truth.

Yet from a pro-life person's perspective, it may be unethical and therefore inappropriate to give pregnant women information about the abortion option, since--from their point of view--abortion is a form of unjustifiable violence. Just as a crisis pregnancy center would not be obligated to tell a pregnant woman that she could find baby brokers who would legally sell her baby to the highest bidder, even if this happened to be true, a pro-life advocate might well regard the abortion alternative as just as bad as or maybe even worse than the broker alternative. Just because an option is legal does not make it legitimate or moral, such an advocate would probably say.

To provide an analogy, I have a friend who, like me, is an ethical vegan and who works in a food market, primarily with produce. When people ask this friend where they can find the non-vegan version of cheese, i.e., cheese made with the lacteal secretions of mammal moms whose babies are taken away from them and who are slaughtered within a few years, along with their lost infants, the friend replies "I couldn't tell you that." From my friend's point of view, this is not information that anyone is entitled to have; yet customers are likely to misinterpret my friend's words to mean "I don't know," rather than what's actually meant, which is "I know the answer to your question, but I would be violating my ethics if I were to tell you." I consider my friend's actions legitimate, despite the fact that customers are not receiving the "whole truth" about where the cheese is or what the friend knows about where the cheese is.

How different is the failure of pro-life advocates to tell pregnant patients about the abortion option (or where they can call to find out more about it)? One important difference is that other people work at the food market and can tell the inquiring consumers what they want to know. With respect to a pro-life crisis pregnancy center, by contrast, it may be that only pro-life individuals work there, so it is likely that--absent the California law--no one will be telling pregnant patients about abortion. On the other hand, one could conceive of the crisis pregnancy center as one place to gather information in a sea of other places. A dissatisfied pregnant woman could head over to a different pregnancy center or search on the web for one that considers abortion one of the options to which pregnant patients ought to be exposed.

As I have said, as a pro-choice person, I favor the California law, and I do not like the idea of patients receiving incomplete (and, to that extent, inaccurate) information about their options in case they are pregnant. But as my co-author Michael Dorf and I explain in our book, Beating Hearts: Abortion and Animal Rights, neither of us regards pre-sentience abortions as violating an embryo's or fetus's interests, so I do not have ethical qualms about most abortion procedures. For someone who takes a different view, however, I think I can understand and empathize with the desire not to tell the "whole truth" when it comes to this procedure. It is, in other words, very difficult to separate out one's perspective on abortion from one's perspective on the California law requiring the provision of (some) information about the availability of abortion for pregnant women. Or to put it differently, I would have a hard time tolerating having to let people know about all of the restaurants they could go to consume animal products (if only there were restaurants in my town that were actually vegan).

15 comments:

I see this as simpler. Since we have already agreed that compelling medical providers to speak in certain ways is acceptable, the California law is not significantly different from laws that require abortion providers to provide information about adoption.

The problem, of course, is that there are free-exercise aspects to this particular compelled speech. I would still argue that it is relevant, and that there is no less restrictive means to achieve California's goal of informing patients about available options. (At this point, I'm assuming this is a signage requirement or a written materials requirement. If it is something more, that could change my opinion.)

The provider should of course be allowed to include additional signage or text saying, in effect, "California made me post/provide this."

2.) Causing the customer who has already self-identified as consuming dairy to expend more calories looking around the store for the dairy could actually result in more net dairy consumption, as the customer will consume more dairy (or even meat) to replace those calories?

And, the CA law is relatively mild -- licensed providers (licenses are state authorizations that bring more strings) have to include certain substantive information while unlicensed ones merely have to put up a disclaimer and don't even have to point the way ala the vegan example.

This is an example of where we see that "no" in the 1A doesn't mean an absolute bar. Freedom in the public sphere is regulated. Citizens United upheld disclosure laws too.

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I think per Greg's comment, it is useful to look at what is at issue here. The law can be found here:

“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

A center with a license from the state needing merely to provide this notice of a state office that provides a RANGE of choices (to meet the various religious and moral needs of the clients, for instance) is to me a reasonable fit. Litigation in the past, e.g., concerned abortion providers required to supply certain information, including of private organizations deemed ideologically problematic. This is a more neutral one shot source of information.

Again, this only applied to LICENSED facilities. The rest have this:

"This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services."

Since these centers repeatedly have the look of medical providers -- medical advice, ultrasounds and the like, this again is a narrow appropriate rule. The state also had hearings to show there was a reasonable need here.

If some church, e.g., has counseling of pregnant women, I assume this sort of thing doesn't apply. It isn't the type of "facility" at issue.

If the problem is caused by the implicature of the name "Pregnancy Crisis Center" or similar names, and implications are defeasible, why not allow those with an objection to abortion or contraception to defeat the implication? Instead of requiring them to direct customers to those who perform abortions, simply require them to state that they offer only services consistent with their beliefs. This seems to accomplish the goal of letting people know that the name doesn't entail full service family planning, but seems to allow less connection with abortion for those who see any connection as abominable.

I'm pro-choice and find many of the sought exemptions for religious practice laughably excessive, but this seems to accomplish the goal slightly more respectfully.

This law doesn't "direct customers to those who perform abortions," does it?

For centers given government licenses (and only them), they need to put up a sign where you can call a state number. IF you want, they will direct you to abortion services. No license? A disclaimer is required.

This law's purpose btw is not merely to avoid confusion (it is true this is flagged as a concern) but to further full health information over a time sensitive matter. State licensing is again important in that respect.

Interesting and thoughtful as always. One additional comparison is that if your friend told a customer, "oh you mean cheese made with the lacteal secretions of mammal moms whose babies are taken away from them and who are slaughtered within a few years, along with their lost infants?!" she would likely be reprimanded if not fired. A vegan market could adopt a "customer service" policy supporting such statements to customers; and I think that would be perfectly legal, if poor business sense. A facility that opposes abortion could likewise offer discouraging statements regarding California's policy, and abortion in general. Joe helpfully provides the meat and potatoes of the law and it seems very mild and not providing fulsome information. I don't think there is a scintilla of fraud (I recognize you didn't use that word) in a pregnancy center not telling about abortion. I say this not simply because I'm pro-life, but because the notion of "whole truth" is itself subjective, as you describe. [That is not to say "whole truth" is in every context entirely subjective, or that workable or common sense standards cannot be recognized in particular circumstances (as in a courtroom).] While objectivity can be laudable, the freedom of expression rightfully has supremacy because there is not an objective arbiter of truth on this planet.

This is what I took to suggest that licensed institutions would be directing customers to those who perform abortions: "…it requires licensed facilities to notify their patients that California has public programs that provide free or low-cost reproductive services, including abortion, coupled with a phone number for women to access such services." If your point is that the person answering the phone on the other end won't be the doctor performing the procedure, I grant it, but it doesn't seem relevantly different from talking to a receptionist at an abortion clinic, from the perspective of someone with a moral objection to abortion. Does that seem like an accurate description of how those with this objection would see it?

I agree that the law doesn't just avoid confusion, but actively recruits those who operate pregnancy crisis centers in the service of public health. That suggests that the analysis in the article only partly characterizes the purpose of the law; it's not merely about forthrightness. If it were, there would be a less restrictive means (as I suggested above). I can't think of a less restrictive means of accomplishing the public health objective.

It does seem to me somewhat perverse to effectively punish those who seek to provide an alternative for pregnant women in need of support. Though it's true that this puts them in a unique position to identify women who would benefit from alternative programs, I think I'd rather make it as easy as possible for these centers to pass out literature on other options in the state, and let them refuse it if they were adamant about the violation of their consciences.

I'd like to point out that (all else being equal) I agree with Joseph Simmons that there is nothing immoral or inappropriate about a health care provider choosing not to mention abortion, absent some specific legal obligation to do so.

As such, I think Kilo correctly characterizes this notice as an attempt to improve public health, not to correct a fraud being perpetrated by medical providers.

As a public health notice, I find it appropriate.

If a licensed medical provider would be okay with being *obligated* to say:

“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

OR

“California has public programs that provide immediate free or low-cost access to prenatal care for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

then they can reasonably also be required to post this notice, to which they object:

“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

Simply because the practitioner prefers not to mention abortion doesn't cause adding the words "and abortion" to suddenly make the notice outside the state's reasonable regulatory power.

The underlying problem is that we have come to see all speech, in any context, as being a form of advertising or marketing--everything is spin, or political framing, or data to be mined in order to manipulate others. After all, that is exactly what your vegan friend is doing--she is using silence in order to manipulate the customers in the store. This is especially heinous behavior because being a clerk in the store she is in a position of power over the customer. To be blunt, she is taking advantage of her place of privilege to inflict her moral beliefs on others by putting road blocks in the way of others exercising their beliefs. The most direct legal analog is the Little Sister of the Poor and associated cases where simply signing a form is a burden on their rights.

I think your friend is wrong for the same reason I think the little sisters are wrong for the same reason I think the clinics are wrong. The question isn't in all three cases whether their religious or ethical views are being burdened. They are. The question is whether the burden is a "reasonable" one (per Joe) or a "substantial" one. I simply fail to see how, in any case, giving information to someone makes one complicit in an unethical act. It doesn't.

I'm sorry but in my view in your vegan friend is correct civilized society is impossible.

James, I cannot see anything heinous about not directing somebody to the cheese and it certainly is not done with an intent to manipulate - indeed not even the effect is manipulative. And the notion that a store clerk is in a "position of power over the customer" and has a "place of privilege" is silly. If you think not telling the customer the location of the cheese is somehow rude, okay; but it's certainly not the fantastic tale of an adventurer of great conviction in search of the holey cheese of Wisconsin, thwarted by the fire-breathing vegan in the aisle of green beans.

"If you think not telling the customer the location of the cheese is somehow rude"

I don't think it is rude, I think it is lying. She says she cannot tell people the location of the item when she manifestly can. That is a direct lie. Even Sherry agrees on that point.

So I don't understand what point you are trying to make. Everyone but you seems to agree that the clerk is lying and lying is harmful. It may be rude too, but that is besides the point. Maybe if would be helpful if you explained why you think the clerk is not lying.

James, I don't think Prof Colb agrees with you that her friend is telling a "direct lie." In any event, even as some kind of white lie, I don't see it as anything more than potentially rude.

You adopt the Trump form of argument "everyone agrees with me," but that too is not supported by what is written on this page.

I understand your trying to shift the burden of the argument to me and narrow your beef to what "whole truth" isn't being told, since your hyperbolic comment above did not withstand scrutiny. Yet, I readily concede that the "whole truth" isn't being told. I just don't think that automatically qualifies as a "lie"; and even if so categorized, I don't think the effect is necessarily "harmful."

I think Prof. Colb did a good job of explaining what "whole truth" was lacking: "customers are likely to misinterpret my friend's words to mean 'I don't know,' rather than what's actually meant, which is I know the answer to your question, but I would be violating my ethics if I were to tell you.'"

I don't care to quibble on whether it is some kind of lie.

To reiterate in a less humorous fashion my points above: (1) I don't think the store clerk is in a position of power and privilege; (2) I don't think she is undermining the beliefs of others; (3) and I don't think she is harming those whom she fails to disclose the location of the cheese.